O'Connor v. Ortega
Encyclopedia
O'Connor v. Ortega, , is a United States Supreme Court decision on the Fourth Amendment
rights of government employees with regard to administrative searches in the workplace, during investigations by supervisors for violations of employee policy rather than by law enforcement for criminal offenses. It was brought by Magno Ortega, a doctor at a California state hospital after his supervisors found allegedly inculpatory evidence in his office while he was on administrative leave
pending an investigation of alleged misconduct. Some of what they uncovered was later used to impeach a witness
who testified on his behalf at the hearing where he unsuccessfully appealed his dismissal
.
Although lower courts had considered the issue, it was the first time
the Supreme Court had. By a 5-4 margin, the Court ruled that public employees retain their Fourth Amendment rights. Justice Sandra Day O'Connor
's plurality opinion
established an "operating realities" test for future courts to consider when public employees challenged searches during investigations, reflecting the lower reasonable suspicion
standard the government had to meet as an employer. That did not establish binding precedent
, since Antonin Scalia
argued in a separate concurring opinion
that her standard was too vague, and that the same searches which would be reasonable for a private employer were proper when conducted by their public counterparts. Harry Blackmun
wrote for four dissenting justices that the search was clearly an investigatory one and thus a breach of the doctor's privacy.
Since it could not decide how to apply that standard to Ortega's case as the record at that time did not establish whether the entry into Ortega's office had been for search purposes or not, the majority remanded the case to the district court. Eleven more years of litigation followed. At some points during it Ortega had to represent himself, and the Court itself had taken the unusual step of inviting Joel Klein
to argue Ortega's case before them
. It went back and forth between the district and appellate courts twice. Ortega finally prevailed after a jury trial in the late 1990s, and the Ninth Circuit
denied Ortega's superiors their appeal.
Despite the two different standards resulting from the split five-justice majority, lower courts have generally followed O'Connor's "operational realities" test in future cases involving actual searches. Observers thought the justices might resolve the conflict the next time a similar case of public employees alleging a search violated their Fourth Amendment rights came before it. When it did, in 2010's Ontario v. Quon
, they declined to do so, leaving the matter open for yet another future Court.
in Napa, California
, purchased a new Apple II
computer to use in running the program. Half of the money for it had been donated by some of the residents; Ortega covered the rest. A month later, he asked Dr. Dennis O'Connor, the hospital's executive director and his superior, to sign some thank-you letters to the residents who had made contributions, and to authorize some purchase orders for peripheral
s and other accessories for the computer.
O'Connor was not sure whether the computer had been properly donated to the hospital, and hesitated to sign the letters. Two months later, Ortega suspended
a resident for failing to report for a rotation. The resident complained to Dorothy Owen, the hospital's personnel director, that Ortega was retaliating against him for not only having not contributed to the purchase of the computer but advising other residents to ask him for their money back.
In late July Owen told O'Connor of the resident's complaint. O'Connor asked Richard Friday, the hospital administrator
, to begin an investigation into the resident's allegations specifically and the purchase of the computer generally. He gave Friday and his investigative team broad authority, including permission to search Ortega's office. The hospital otherwise had no policy on such searches.
O'Connor asked Ortega to take administrative leave
the next day. Ortega instead received O'Connor's approval for two weeks of paid vacation, after which the administrative leave began. O'Connor told Ortega not to return to the hospital without his permission during his vacation. During the time Ortega was on vacation, Friday had the lock changed and kept the key in his own office.
When Ortega's vacation ended, O'Connor sent a letter to Ortega informing him he was now on paid administrative leave, and extending the restriction on visits to the hospital. Before Ortega had received it, he returned to the hospital. Finding his office door locked and unable to open it himself, he took the computer, then in an unsecured nearby room, home to work with it there, as he had done on occasion in the past.
Upon learning of this, O'Connor called the hospital police, believing that the computer was state property and thus Ortega had stolen it. At some other point during the time Ortega was on vacation and leave, a staff psychiatrist who ran a support group
for residents told O'Connor about complaints of possible sexual harassment
on Ortega's part from two female residents. It was not clear whether this took place before or after at least one thorough, highly intrusive search of Ortega's office. Materials were removed from Ortega's office, boxed and stored when the security guard performing the inventory found it too difficult to sort out Ortega's property from the state's.
On a separate visit to Ortega's office, Friday found several items—a Valentine
, suggestively posed photo and inscribed book of love poetry—sent to Ortega several years earlier by a former resident. After the hospital fired Ortega in September, he appealed to the State Personnel Board. When the former resident testified on Ortega's behalf during the hearing, these items were introduced in an attempt to impeach
her.
Owen asked Ortega after the firing if he wanted his personal possessions from his office returned. He did not. By spring of 1982 he had changed his mind. In response to another request, Asher Rubin, the deputy attorney general who had represented the state before the Personnel Board, told him he could make copies of his personal papers but could not keep the originals, nor any of his other personal property.
, seeking $750,000 in compensatory and punitive damages
. In addition to the violation of his Fourth Amendment
protections against unreasonable search and seizure, he made tort
claims for invasion of privacy
and breach of covenant of good faith and fair dealings under California law. The defendants argued that they had entered Ortega's office and gone through the contents of his desk purely to inventory
property and separate state-owned items from the doctor's personal possessions, which it claimed was standard practice when employees had resigned or been terminated. Both sides moved for summary judgement, which Judge John P. Vukasin Jr.
granted to the defendants on all claims. It found that the entry into Ortega's office had been for the purpose of securing state property for use by a successor.
Ortega appealed to the Ninth Circuit
. In 1985 a three-judge panel unanimously reversed the district court on the search but upheld it on the state-law tort claims. "The entry into the office seems to have been for no other purpose than to secure evidence for use in the ongoing investigation of Ortega," Judge Dorothy Wright Nelson
wrote." While the state had said that the entry to the office was not intended as a search, she noted that at the time the doctor had not yet been fired or resigned but was merely on administrative leave. Nor did this seem to have been regularly undertaken in situations where it did apply.
After that finding, Wright considered whether such a warrantless search was reasonable under the Fourth Amendment. She applied the two-pronged test from the Supreme Court's 1967 Katz v. United States
decision to establish whether Dr. Ortega had a reasonable expectation of privacy over the contents of his desk and office. First, did he have a subjective expectation that they would be left undisturbed by others, and second, would that expectation be one that society would consider reasonable and respect?
On the first prong, he had occupied the office for all 17 years of his employment. He kept within his desk not only personal papers and effects but confidential patient records. He had believed he had the only key, and was not aware of any other time during his employment at Napa in which his office had been entered without his permission. In Mancusi v. DeForte
, the Supreme Court had held that an employee can have a reasonable expectation of privacy over his or her desk at work from searches by law enforcement.The Court, in that case, overturned the conviction of a Long Island
labor union official on corruption and racketeering-related charges since the principal evidence had been taken from his desk by investigators who only had a subpoena
.
Two cases from the Third Circuit
, with direct similarities to Ortega's, argued for the reasonableness of his privacy expectation. In one, the presence of presence of sensitive and confidential documents within a deskIn that case, a member of the Fair Lawn, New Jersey
, school board
had opened a guidance counselor's desk drawer and found the original draft of a pseudonymously published cartoon that ridiculed the board. was held to strengthen the privacy expectation; and in the other, the personal lock that a police officer had used for his department locker led to the suppression of a sawed-off shotgun seized by federal agents.
In the latter case, the department had also lacked a formal policy on whether the lockers could be searched, as had been the case at Napa. This Wright used to distinguish it and Ortega's case from other precedents where warrantless searches of public employees' lockers, jackets or backpacks had been upheld due to broadly disseminated and actively implemented policies that such searches could occur at any time. "Here, Napa had never instituted surveillance or searches and had no general inspection policy that might have defeated Ortega's expectation of privacy in his office," she concluded.
The appeals court ordered the district court to enter judgement in Ortega's favor on that issue and hold proceedings to fix damages. The pendent state-law claims had not been filed in a timely fashion, and the panel affirmed that part of the summary judgement.
petition was granted by the Supreme Court in 1985. Since he was representing himself
, Ortega filed his own brief
. The Court invited Joel Klein
, the future New York City Schools Chancellor then in private practice, to argue Ortega's case, and he also filed an amicus curiae
brief on Ortega's behalf.
The appellants' brief was filed by California Attorney General John Van de Kamp
and several of his assistants. Solicitor General Charles Fried
filed an amicus brief on behalf of the federal government urging reversal. The American Civil Liberties Union
and American Federation of State, County and Municipal Employees
urged affirmance in their amici. Oral argument
s were held in October 1986.
Likewise, a desk was a "common repository", likely to be used by many people besides the one regularly seated behind it. "It is foreseeable that a number of different people working for government, from clerical staff to supervisors to colleagues, will move into an office, that is, enter an office, open a desk for a variety of reasons." When Justice Sandra Day O'Connor
challenged him as to whether employees in the private sector would have a reasonable expectation of privacy over their desks, he agreed that they might but reminded her the Fourth Amendment does not apply to private employers.
He asked that the Court follow the logic of its 1985 ruling in New Jersey v. T. L. O.
in which it had held that only a reasonable belief that evidence of misconduct would be found was needed to justify a search of a student or possessions on school property during school hours. Chief Justice William Rehnquist
asked Miller if he was arguing the Fourth Amendment did not apply at all in schools. "it seems to me there is certainly language in T.L.O. against you on that point." That case, Miller responded, "had at least made the initial inquiry into whether the Fourth Amendment was applicable."
The other justices were not convinced that Ortega's office had been entered for inventory purposes. They pointed to facts in the record they saw as being at odds with the state's interpretation. Antonin Scalia
asked if it were possible that the Court could rule that it was an inventory but the actions taken had exceeded the scope of those necessary to accomplish that. Miller said that would be moot as there was no expectation of privacy over the desk and office. He further explained that Ortega's key may have givn him a subjective expectation of privacy, but not necessarily a reasonable one. Miller admitted to Thurgood Marshall
that he did not know why the inventory could not have been done in Ortega's presence to better facilitate the sorting of property.
He noted that most public agencies have an Inspector General
or something similar, who "every now and then drops in on offices to see if employees have their own things in their office". When Justice Byron White
asked if his position implied that a public agency could search its employees' desks or offices at any time of the day or night, he said yes. "It may give rise to work grievances, to state and common law tort remedies ... but it would not violate the Fourth Amendment in our view."
Before he could get to the third, he was challenged by Scalia, who posited a situation where he might be working late and need to retrieve a document or file. He would find it on the desk of one of his clerks, who might have gone home for the day. "Now," he asked, "have I conducted a Fourth Amendment search and seizure, and I am only immune from ... suit because it was reasonable?
Klein conceded to another justice's followup question that it was understood that, in all offices, "our expectation is, in the evenings, when people go home, others may on the basis of need enter ... The Fourth Amendement does not apply in most situations to a routine office entry, that is, if an employer or co-worker walks into your office looking for a paper clip." However, he said, that understanding did not defeat an expectation of privacy, likening it to a hotel room, where the Court had previously held there was an expectation of privacy even though hotel staff routinely enter for janitorial purposes. Scalia asked if it would be a Fourth Amendment violation if cleaning crews were to have looked through Ortega's desk and papers. "I don't think they would be exercising government authority in that situation", Klein answered, since the cleaning crews were presumably under instructions not to do so.
O'Connor asked if it would be reasonable for a supervisor to enter an office and look through a desk to "discover whatever might be appropriate for work-related wrongdoing of some kind?" As an example, she suggested, a supervisor might want to assess an employee's progress toward a deadline. Klein did not think so, since normally such matters are handled by asking the employee to produce whatever work has been completed.
To highlight his argument that the intrusion into Ortega's office had been a search rather than a property inventory, he used the example of the book of poetry, which was obviously personal property. "[I]f you pick up a book of poetry you don't have to open that book to find out who sent it to him." It was suggested that perhaps he read poetry to his patients, but Klein responded that the state had not suggested that and that, even if he did the book was still undeniably personal property.
He, too, compared the case with T.L.O., telling Justice White that he believed a search warrant
might have been necessary to enter Ortega's office in this situation. "[L]et me just say that I think that they were looking for information to use against him to take his job away from him. He had been singled out", Klein said. "[E]ven if you take the T.L.O. standard, it is inconceivable that we could have a lower standard at the work place than we have at the school given the interests of employees and their adult age ... [T]here has to be reasonable suspicion when you go in to do the search that you will uncover evidence." If the state or the hospital had really wanted the right to enter employees' offices, it could have followed the example of the Mint
and the Customs Service
and promulgated a regulation stating that employees' property could be subject to search.
Justice Sandra Day O'Connor
wrote for a four-justice plurality
that the same reasonable suspicion
standard it developed for T.L.O. was applicable to administrative searches of public employees' workspace or possessions, since the "operational realities" of a public work environment may substantially reduce or eliminate a standard expectation of privacy. In a separate concurring opinion
, Justice Scalia rejected that as too vague to be useful to lower courts, and proposed instead that any search that would be reasonable for a private employer would be permissible for a public one.
Harry Blackmun
wrote for the four dissenting
justices. He believed the majority had put too much weight on the different interpretations of the intrusion by the district and appellate courts, since he felt it was clearly an investigatory search for evidence against Dr. Ortega. Also, he charged, the majority had taken his concurrence in T.L.O. out of context to support its reasonableness standard. He did not feel, as they did, that outside of special cases such as the school system that it would have been detrimental to the operations of a public agency such as the hospital to have some sort of independent review and establish probable cause
for an administrative search related to possible violations of policy.
, Byron White
, and Lewis Powell
, defined the boundaries of the workplace context as "those areas and items that are related to work and are generally within the employer's control." Some items that passed through the workplace were personal, and as the Court had ruled in Mancusi, a reasonable expectation of privacy may exist there. "[W]e reject the contention made by the Solicitor General and petitioners that public employees can never have a reasonable expectation of privacy in their place of work," she wrote. "Individuals do not lose Fourth Amendment rights merely because they work for the government, instead of a private employer."
She immediately qualified that holding.
Moving from the general principle to the case at hand, O'Connor agreed that Ortega had that same reasonable expectation of privacy, but that since the record did not reflect the extent of whatever legitimate work-related reasons the hospital administrators might have had to enter the office, the Ninth Circuit should have remanded the case to the district court to determine that, as the majority was doing. Following T.L.O., she said the inquiry should not stop with determining the Fourth Amendment applied, but whether the contxt made the search reasonable. "We must balance the invasion of the employees' legitimate expectations of privacy against the government's need for supervision, control, and the efficient operation of the workplace."
There was, O'Connor admitted, "surprisingly little case law
" on the subject. That which existed did seem to support the standard she proposed for work-related searches, most notably a 1973 case from the Seventh Circuit
in which the surreptitious recording of an Internal Revenue Service
's agent's conversations at his desk by the agency's internal investigators was held to be reasonable and work-related, and a 1951 case from the District of Columbia
which held that although a search of the appellee's desk by local police with her government supervisor's permission was unconstitutional, a work-related search by her supervistor would not have been. She distinguished these from other cases that proposed other standards for public workplace searches by noting that those cases were either not work-related or involved criminal misconduct.
"In our view," O'Connor continued,
She quoted from Connick v. Myers
, an earlier case which had considered the First Amendment
rights of an assistant prosecutor fired for allegedly disruptive behavior: "[G]overnment offices could not function if every employment decision became a constitutional matter."
O'Connor announced that the Court would consider only the constitutionality of work-related and investigatory searches "and leave for another day inquiry into other circumstances." She found "the efficient and proper operation of the workplace" to similarly justify investigatory searches, since supervisors had different needs from law enforcement
. "The delay in correcting the employee misconduct caused by the need for probable cause, rather than reasonable suspicion, will be translated into tangible and often irreparable damage to the agency's work, and ultimately to the public interest." She again cited T.L.O. to justify this standard. "Government offices are provided to employees for the sole purpose of facilitating the work of an agency. The employee may avoid exposing personal belongings at work by simply leaving them at home."
Lastly O'Connor found the district court's finding on summary judgement that the intrusion was for the purposes of securing state property to be in error since there was a genuine dispute of fact. It followed then that the appellate court could not have made a definitive finding of fact either. The case was remanded to the district court with instructions to both determine what justified the search and seizure of Ortega's property and whether that search was reasonable in both its inception and scope.
The plurality's standard could not be right if it led to a conclusion that the Fourth Amendment did not apply to a work-related entry into Ortega's office.
Whether it was a supervisor or police officer entering the office, he said, only made a difference as to whether the search was reasonable, not whether the Fourth Amendment applies. When a firefighter enters a house where an alarm has gone off, he noted, "we do not ask whether the occupant has a reasonable expectation of privacy (and hence Fourth Amendment protection) vis-a-vis firemen, but rather whether—given the fact that the Fourth Amendment covers private dwellings—intrusion for the purpose of extinguishing a fire is reasonable", citing the Court's Michigan v. Tyler ruling.That case had dealt with Fourth Amendment rights during the subsequent investigations of the fire, not the firefighters' initial entry.
He argued that the offices and desks of public employees were covered by the Fourth Amendment as a general matter, choosing his words to avoid the Katz rule that places exposed to public view are not covered by the Fourth Amendment since some government offices, as O'Connor had noted, were subject to unrestricted public access. "Government searches to retrieve work-related materials or to investigate violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private employer context—do not violate the Fourth Amendment." Since the evidence in the case did not support a summary judgement, he joined his colleagues in ordering the case remanded.
, Thurgood Marshall
and John Paul Stevens
, Blackmun said "The facts of this case are simple and straightforward. Dr. Ortega had an expectation of privacy in his office, desk, and file cabinets, which were the target of a search by petitioners that can be characterized only as investigatory in nature." He disagreed with the plurality that there was anything special about a public workplace that justified a lower standard for such searches, and called the intrusion an unconstitutional search. Not only had it found what were to him clear facts in dispute,In his footnote 3, Blackmun accused the plurality of letting its opinion on this issue be shaped by its members' antipathy to public workers. it had nevertheless chosen to derive a standard from a case it had remanded to resolve that dispute. "As a result, the standard that emerges makes reasonable almost any workplace search by a public employer."
As to the facts, Blackmun contended the plurality had been confused, partially relying on Ortega's removal of the computer as a reason to consider the intrusion reasonable when, he noted, the record itself had testimony from Friday that that this had not triggered the search. Dr. O'Connor had further admitted in his deposition
that there was an investigatory interest in the contents of Ortega's office. The searchers had also consulted with a lawyer and waited until the evening. "The search in question stemmed neither from a Hospital policy nor from a practice of routine entrances into Dr. Ortega's office", he wrote. "It was plainly exceptional and investigatory in nature. Accordingly, there is no significant factual dispute in this case."
Blackmun began his disagreement with the plurality's embrace of the reasonable suspicion
standard by agreeing with it that government employees retained their Fourth Amendment rights at work. He accepted as well that routine work-related intrusions might diminish their expectation of privacy. He did not accept that such intrusions would eliminate it.
The Court had always recognized Fourth Amendment rights in offices, he said, despite the understanding that it would be visited by others. The plurality did recognize, he conceded, another point: that a search unreasonable in one context might be reasonable in another.In his footnote 2, Blackmun responded to Scalia's criticism by quoting from other opinions, most by his fellow dissenters, to the effect that a case-by-case analysis might be the only way to create effective Fourth Amendement jurisprudence But
Thus he thought it especially important that the context of the search be considered.
Blackmun reminded the plurality that his concurring opinion in T.L.O., from which Justice O'Connor had drawn support for her "special need" argument, was meant to address an error he believed that case's plurality had made. The balancing test he had proposed there was not needed here, since "[t]here was no special practical need that might have justified dispensing with the warrant and probable cause requirements." The time and effort required to get a warrant, he said, would not have detracted from the hospital's mission of providing quality patient care and educating new psychiatrists. An independent review by a magistrate
might, he added, have helped make the search not only constitutional but more efficient, since they would have been forced to list and justify every aspect of the office and desk they wished to look through.
And even if there were a special need, the balancing test would still not be necessary.
Despite claiming to have drawn well-defined standards from the facts of the case, the two categories of searches it had approved as not requiring warrants, they were, Blackmun felt, so broadly drawn that "it is difficult to imagine a search that would not fit into one or the other ..."
, then on appeal to the Fifth Circuit
and seen as likely to reach the Supreme Court (as it eventually did). It involved a challenge by employees of the United States Customs Service
to a proposal by the agency that employees in certain positions submit to mandatory drug testing. The employees' union had sued to block it, arguing it was a violation of their Fourth Amendment protections.
The union and the American Civil Liberties Union
, which had also filed an amicus brief urging affirmance in O'Connor, praised the court's holding that public employees had Fourth Amendment rights in the workplace. They said it made their arguments in Von Raab stronger. The Justice Department
maintained that it still believed the Customs Service's drug testing requirement would be held constitutional.
him by refusing to allow him to present them. As a result he was largely limited to cross-examining
the opposing witnesses, and when the defense was done presenting its case the court granted its motion for a directed verdict
.
Ortega appealed to the Ninth Circuit again, retaining his lawyer to do so. He challenged not only the sanctioning but the trial court's refusal to let him Asher Rubin as a defendant. In late 1994 a three-judge panel heard the case; it announced its decision five months later.
Circuit judge Diarmuid O'Scannlain wrote for a unanimous panel that the sanctions, while within limits of judicial disrection, had so adversely affected Ortega's case that the verdict was tainted. Reduced to merely cross-examining opposing witnesses, he could not present his own case-in-chief. And, further, they were unjustified as the trial record included a letter from Ortega to Paul Hammerness, the assistant attorney general handling the case, referring to "the enclosed witness list", that had been stamped as received by the court in November 1992.
"The court appears to have overlooked this evidence of Dr. Ortega's compliance", O'Scannlain wrote. "Dr. Ortega's compliance is not negated by the fact that opposing counsel failed to receive the list." Therefore, the sanctions against his witnesses had clearly been erroneous. The panel then affirmed the district court on its denial of the additional defendant, as the district court that had first heard the case dismissed that defendant on prosecutorial immunity
grounds. Had Ortega wished to challenge that holding, the panel said, he had to have done so on his original appeal to the Ninth Circuit.
On remand, O'Connor and Friday, the only defendants left, changed their strategy and asserted qualified immunity
,Qualified immunity
bars suits against those acting under color of law
for actions that might have been illegal, or were later prohibited, but for which there was a lack of settled law at the time. for the first time, dropping their claim that the need to secure or inventory state property justified their intrusion. Instead, they said, the claims of misconduct, particularly the alleged sexual harassment
, made it necessary. During pretrial motions, Judge Marilyn Hall Patel
, who took over the case since Vukasin had died, barred the use of qualified immunity and ruled that sexual harassment could not have justified the search. As a result both parties agreed not to introduce the book of poetry, photo and Valentine.
A jury found for Ortega on all his claims. It awarded him $376,000 in compensatory damages, and $35,000 and $25,000 respectively against O'Connor and Friday respectively. Afterward, the district court awarded almost $32,000 in attorney's fees. O'Connor and Friday appealed.
A three-judge panel, including two of the judges who had been on the 1985 panel, found Patel's rulings on qualified immunity and the sexual harassment claims worthy of consideration. Stephen Reinhardt
, one of those original judges, noted that Judge Vukasin had rejected the qualified immunuity defense at the first trial and that the jury instructions
Patel and both sides had approved made such a defense possible even if the exact words "qualified immunity" were not used. Nor were the defendants correct in arguing that there was no settled law before the Supreme Court's ruling. "[I]t was clearly established in 1981 that, in the absence of an accepted practice or regulation to the contrary, government employees such as Dr. Ortega had a reasonable expectation of privacy in their private offices, desks, and file cabinets, thereby triggering the protections of the Fourth Amendment with regard to searches and seizures", Reinhardt wrote. He quoted explicit language to that effect from the Supreme Court's 1966 holding in Hoffa v. United States and noted the Supreme Court plurality's citation of existing lower-court holdings saying the same thing. Even if it had not been, it was not "reasonable under the circumstances", as Terry v. Ohio
required.
O'Connor and Friday had argued that, by denying them the opportunity to raise the sexual harassment claims as a justification for the search, Patel had improperly granted what amounted to sua sponte
partial summary judgement against them. Reinhardt countered that they had had adequate time to develop their defense and so the judge was "procedurally free" to do that. He turned to whether such a ruling was justified and not an abuse of discretion. Even if he resolved an issue of disputed fact in their favor and assumed that O'Connor and Friday knew of the sexual harassment allegations before they went into Ortega's office, the allegations themselves were vague, and one of them was ten years old. Thus, he continued, they did not create a reasonable suspicion that he was harassing residents, and even if they did they could not have reasonably established a likelihood that evidence supporting them would be found there. "The search was, at best, a general and unbounded pursuit of anything that might tend to indicate any sort of malfeasance—a search that is almost by definition, unreasonable." It had also been properly excluded since its prejudicial value outweighed its probative value.
"It is now seventeen years since the search of Dr. Ortega's office occurred and his most personal letters and possessions were examined and seized. It is time to bring this matter to a conclusion", wrote Reinhardt. He dismissed the remaining grounds for appeal as meritless, and the panel unanimously upheld the district court. The appellate decision was not further appealed.
After the state paid his claim, amounting to over $700,000 with interest
, Dr. Ortega was sued by one of his former attorneys for unpaid bills. The two settled the claim in arbitration, but after Ortega refused to comply, the attorney sued him and won an adjustment to the arbitration award correcting some errors made in calculating the interest rate. A state appellate court upheld the trial court verdict in 2001, saying Ortega's "often rambling and incoherent narratives" in briefs he wrote himself left them with little in the way of substantive legal argument. Ortega died in 2009.
. A 5-4 majority held that the urine testing the Customs Service
proposed for internal promotion to positions involving drug interdiction, carrying firearms or handling classified material was reasonable since it was "not designed to serve the ordinary needs of law enforcement." Scalia, in a dissent joined by Stevens, called the program "a kind of immolation of privacy and human dignity in symbolic opposition to drug use". The Customs Service, he said, had not introduced "real evidence of a real problem that will be solved by urine testing."
Later, when turning down a 1997 challenge by employees of Puerto Rico Telephone to a proposed video surveillance plan, Judge Bruce M. Selya of the First Circuit
called O'Connor "[t]he watershed case in this enclave of Fourth Amendment jurisprudence". His opinion surveyed a number of other district and circuit cases considering the "operating realities" of public workplaces to establish whether a legitimate expectation of privacy existed.
A key issue was whether the workplace or portion in question was reserved for the employee's personal use. A judge in the District of Kansas
had granted summary judgement to Johnson County Community College
against its security guards who challenged its video surveillance of their locker room by noting that the locker area under view was not exclusive to any of them. This distinguished it from the Drug Enforcement Administration
's surreptitious videotaping of two agents convicted of illegal wiretapping, where the Ninth Circuit suppressed the videos because it found the agents had exclusive use of their offices.
In a New York case that echoed Scalia's questions to Klein at oral argument, the Second Circuit
found it reasonable for a judge to have court officers seize the contents of his just-fired law clerk's desk since the relationship between the two required free and complete access to each other's papers. As in cases preceding O'Connor, a workplace policy on searches has been held to defeat or diminish expectations of privacy. The Ninth Circuit upheld a civilian engineer's discharge from the Naval Reserve was upheld on the grounds that regular workplace searches removed any expectation of privacy over documents revealing his bisexuality
. An unenforced or absent policy has been held to create a legitimate expectation.
purchased 20 alphanumeric pagers for its police department SWAT
team to carry on and off-duty. A department policy, never put in writing, said that "light personal use" was permitted but that the pager messages could be audited at any time.
Several officers routinely exceeded the monthly character
limit. The lieutenant in charge of the pagers at first allowed them to reimburse the city for the overage fees in exchange for not auditing the messages. Later, when he was "tired of being a bill collector", he and his superiors decided to audit the text messages to see if the character limit was too low.
Transcripts of the pager messages, redacted to include those sent only during work hours, showed that many of them were not work-related, and some were sexually explicit
. Two officers were disciplined. Afterwards, they sued the superior officers, the department, the city and the pager provider for violation of the Stored Communications Act
and their Fourth Amendment rights. The district court held a jury trial, which determined the audit was work-related, and it ruled for the defendants.
On appeal the Ninth Circuit reversed, calling the audit an unreasonable search. After being denied their petition for an en banc
rehearing, the defendants successfully petitioned the Supreme Court for certiorari
. The Court would only consider the Fourth Amendment claim, so the wireless provider was dropped as a petitioner there.
The case received much attention since it also was the first time
the Court had considered Fourth Amendment rights in the rapidly expanding area of electronic telecommunications. Only Scalia and Stevens remained from the O'Connor court. As a result, it was also seen as a possible chance to resolve the conflict between the plurality's "operating realities" standard and Scalia's.
In June 2010, the Court unanimously upheld the search. Instead of choosing one of the O'Connor standards, it applied them both. Anthony Kennedy
wrote for a seven-justice majority
that since the audit had had a legitimate work-related purpose and its scope was limited to the pager messages sent at work, it was reasonable enough for the plurality in that case, and it would have been reasonable for a private-sector employer as Scalia had proposed.
Stevens and Scalia both wrote separate concurring opinions. The former felt that, under the case-by-case approach Blackmun had advocated in his O'Connor dissent, Quon in this case knew or should have known all his communications could have come under public scrutiny. Scalia's opinion of the "operational realities" test remained unchanged. He called it "standardless and unsupported" and said the Quon majority "underscores the unworkability of that standard".
, a Fourth Amendment scholar, noted that courts have generally used the plurality standard from O'Connor. "Exactly how you get there is sort of tricky, though", he commented. "So courts have mostly just figured that four Justices is more than one and that they should follow the analysis in the concurring opinion."
O'Connor biographer Ann Cary McFeatters writes that her and Scalia's separate opinions in this case were the first of many clashes between the two justices in their joint tenure on the Court. "It would not be the last time Scalia went after her with verbal venom. It would not be the last time his doctrinaire certitude conflicted with her case-by-case approach."
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
rights of government employees with regard to administrative searches in the workplace, during investigations by supervisors for violations of employee policy rather than by law enforcement for criminal offenses. It was brought by Magno Ortega, a doctor at a California state hospital after his supervisors found allegedly inculpatory evidence in his office while he was on administrative leave
Administrative leave
Administrative leave is a temporary leave from a job assignment, with pay and benefits intact. Generally, the term is reserved for employees of non-business institutions such as schools, police, and hospitals....
pending an investigation of alleged misconduct. Some of what they uncovered was later used to impeach a witness
Witness impeachment
Witness impeachment, in the law of evidence, is the process of calling into question the credibility of an individual who is testifying in a trial...
who testified on his behalf at the hearing where he unsuccessfully appealed his dismissal
Termination of employment
-Involuntary termination:Involuntary termination is the employee's departure at the hands of the employer. There are two basic types of involuntary termination, known often as being "fired" and "laid off." To be fired, as opposed to being laid off, is generally thought of to be the employee's...
.
Although lower courts had considered the issue, it was the first time
First impression (law)
First impression is a legal case in which there is no binding authority on the matter presented. Such a case can set forth a completely original issue of law for decision by the courts. A first impression case may be a first impression in only a particular jurisdiction...
the Supreme Court had. By a 5-4 margin, the Court ruled that public employees retain their Fourth Amendment rights. Justice Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
's plurality opinion
Plurality opinion
A plurality opinion is the opinion from a group of justices, often in an appellate court, in which no single opinion received the support of a majority of the court. The plurality opinion did not receive the support of more than half the justices, but received more support than any other...
established an "operating realities" test for future courts to consider when public employees challenged searches during investigations, reflecting the lower reasonable suspicion
Reasonable suspicion
Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch' ";...
standard the government had to meet as an employer. That did not establish binding precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
, since Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
argued in a separate concurring opinion
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
that her standard was too vague, and that the same searches which would be reasonable for a private employer were proper when conducted by their public counterparts. Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
wrote for four dissenting justices that the search was clearly an investigatory one and thus a breach of the doctor's privacy.
Since it could not decide how to apply that standard to Ortega's case as the record at that time did not establish whether the entry into Ortega's office had been for search purposes or not, the majority remanded the case to the district court. Eleven more years of litigation followed. At some points during it Ortega had to represent himself, and the Court itself had taken the unusual step of inviting Joel Klein
Joel Klein
Joel Irwin Klein was Chancellor of the New York City Department of Education, the largest public school system in the United States, serving more than 1.1 million students in more than 1,600 schools...
to argue Ortega's case before them
Oral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute...
. It went back and forth between the district and appellate courts twice. Ortega finally prevailed after a jury trial in the late 1990s, and the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
denied Ortega's superiors their appeal.
Despite the two different standards resulting from the split five-justice majority, lower courts have generally followed O'Connor's "operational realities" test in future cases involving actual searches. Observers thought the justices might resolve the conflict the next time a similar case of public employees alleging a search violated their Fourth Amendment rights came before it. When it did, in 2010's Ontario v. Quon
Ontario v. Quon
Ontario v. Quon, sometimes cited as City of Ontario v. Quon, 560 U.S. ___ , is a United States Supreme Court case concerning the extent to which the right to privacy applies to electronic communications in a government workplace...
, they declined to do so, leaving the matter open for yet another future Court.
Underlying dispute
In March 1981, Dr. Ortega, for 17 years the head of the psychiatric residency program at Napa State Hospital, a mental hospitalMental Hospital
Mental hospital may refer to:*Psychiatric hospital*hospital in Nepal named Mental Hospital...
in Napa, California
Napa, California
-History:The name Napa was probably derived from the name given to a southern Nappan village whose people shared the area with elk, deer, grizzlies and cougars for many centuries, according to Napa historian Kami Santiago. At the time of the first recorded exploration into Napa Valley in 1823, the...
, purchased a new Apple II
Apple II
The Apple II is an 8-bit home computer, one of the first highly successful mass-produced microcomputer products, designed primarily by Steve Wozniak, manufactured by Apple Computer and introduced in 1977...
computer to use in running the program. Half of the money for it had been donated by some of the residents; Ortega covered the rest. A month later, he asked Dr. Dennis O'Connor, the hospital's executive director and his superior, to sign some thank-you letters to the residents who had made contributions, and to authorize some purchase orders for peripheral
Peripheral
A peripheral is a device attached to a host computer, but not part of it, and is more or less dependent on the host. It expands the host's capabilities, but does not form part of the core computer architecture....
s and other accessories for the computer.
O'Connor was not sure whether the computer had been properly donated to the hospital, and hesitated to sign the letters. Two months later, Ortega suspended
Suspension (punishment)
Suspension is a form of punishment that people receive for violating rules and regulations.- Workplace :Suspension is a common practice in the workplace for being in violation of an organization's policy...
a resident for failing to report for a rotation. The resident complained to Dorothy Owen, the hospital's personnel director, that Ortega was retaliating against him for not only having not contributed to the purchase of the computer but advising other residents to ask him for their money back.
In late July Owen told O'Connor of the resident's complaint. O'Connor asked Richard Friday, the hospital administrator
Health administration
Health administration or healthcare administration is the field relating to leadership, management, and administration of hospitals, hospital networks, health care systems, and public health systems...
, to begin an investigation into the resident's allegations specifically and the purchase of the computer generally. He gave Friday and his investigative team broad authority, including permission to search Ortega's office. The hospital otherwise had no policy on such searches.
O'Connor asked Ortega to take administrative leave
Administrative leave
Administrative leave is a temporary leave from a job assignment, with pay and benefits intact. Generally, the term is reserved for employees of non-business institutions such as schools, police, and hospitals....
the next day. Ortega instead received O'Connor's approval for two weeks of paid vacation, after which the administrative leave began. O'Connor told Ortega not to return to the hospital without his permission during his vacation. During the time Ortega was on vacation, Friday had the lock changed and kept the key in his own office.
When Ortega's vacation ended, O'Connor sent a letter to Ortega informing him he was now on paid administrative leave, and extending the restriction on visits to the hospital. Before Ortega had received it, he returned to the hospital. Finding his office door locked and unable to open it himself, he took the computer, then in an unsecured nearby room, home to work with it there, as he had done on occasion in the past.
Upon learning of this, O'Connor called the hospital police, believing that the computer was state property and thus Ortega had stolen it. At some other point during the time Ortega was on vacation and leave, a staff psychiatrist who ran a support group
Support group
In a support group, members provide each other with various types of help, usually nonprofessional and nonmaterial, for a particular shared, usually burdensome, characteristic...
for residents told O'Connor about complaints of possible sexual harassment
Sexual harassment
Sexual harassment, is intimidation, bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favors. In some contexts or circumstances, sexual harassment is illegal. It includes a range of behavior from seemingly mild transgressions and...
on Ortega's part from two female residents. It was not clear whether this took place before or after at least one thorough, highly intrusive search of Ortega's office. Materials were removed from Ortega's office, boxed and stored when the security guard performing the inventory found it too difficult to sort out Ortega's property from the state's.
On a separate visit to Ortega's office, Friday found several items—a Valentine
Valentine's Day
Saint Valentine's Day, commonly shortened to Valentine's Day, is an annual commemoration held on February 14 celebrating love and affection between intimate companions. The day is named after one or more early Christian martyrs named Saint Valentine, and was established by Pope Gelasius I in 496...
, suggestively posed photo and inscribed book of love poetry—sent to Ortega several years earlier by a former resident. After the hospital fired Ortega in September, he appealed to the State Personnel Board. When the former resident testified on Ortega's behalf during the hearing, these items were introduced in an attempt to impeach
Witness impeachment
Witness impeachment, in the law of evidence, is the process of calling into question the credibility of an individual who is testifying in a trial...
her.
Owen asked Ortega after the firing if he wanted his personal possessions from his office returned. He did not. By spring of 1982 he had changed his mind. In response to another request, Asher Rubin, the deputy attorney general who had represented the state before the Personnel Board, told him he could make copies of his personal papers but could not keep the originals, nor any of his other personal property.
Litigation
Ortega retained an attorney and filed a Section 1983 suit against O'Connor (who had now become director of the California Department of Mental Health) Owen, Friday, other parties and the state shortly afterwards in federal courtUnited States District Court for the Northern District of California
The United States District Court for the Northern District of California is the federal United States district court whose jurisdiction comprises following counties of California: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San...
, seeking $750,000 in compensatory and punitive damages
Punitive damages
Punitive damages or exemplary damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit...
. In addition to the violation of his Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
protections against unreasonable search and seizure, he made tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
claims for invasion of privacy
Invasion of privacy
United States privacy law embodies several different legal concepts. One is the invasion of privacy, a tort based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into his or her private affairs, discloses his or her private information,...
and breach of covenant of good faith and fair dealings under California law. The defendants argued that they had entered Ortega's office and gone through the contents of his desk purely to inventory
Inventory
Inventory means a list compiled for some formal purpose, such as the details of an estate going to probate, or the contents of a house let furnished. This remains the prime meaning in British English...
property and separate state-owned items from the doctor's personal possessions, which it claimed was standard practice when employees had resigned or been terminated. Both sides moved for summary judgement, which Judge John P. Vukasin Jr.
John P. Vukasin Jr.
John P. Vukasin Jr. was a United States federal judge.Born in Oakland, California, Vukasin received an A.B. from the University of California, Berkeley in 1950 and a J.D. from the University of California, Berkeley, Boalt Hall School of Law in 1956. He was in the United States Army from 1951 to 1953...
granted to the defendants on all claims. It found that the entry into Ortega's office had been for the purpose of securing state property for use by a successor.
Ortega appealed to the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
. In 1985 a three-judge panel unanimously reversed the district court on the search but upheld it on the state-law tort claims. "The entry into the office seems to have been for no other purpose than to secure evidence for use in the ongoing investigation of Ortega," Judge Dorothy Wright Nelson
Dorothy Wright Nelson
-Biography:Born in San Pedro, California, Nelson received an A.B. from the University of California, Los Angeles in 1950, a J.D. from University of California, Los Angeles, School of Law in 1953, and an LL.M. from the University of Southern California Law School in 1956. She was a Research...
wrote." While the state had said that the entry to the office was not intended as a search, she noted that at the time the doctor had not yet been fired or resigned but was merely on administrative leave. Nor did this seem to have been regularly undertaken in situations where it did apply.
After that finding, Wright considered whether such a warrantless search was reasonable under the Fourth Amendment. She applied the two-pronged test from the Supreme Court's 1967 Katz v. United States
Katz v. United States
Katz v. United States, , is a United States Supreme Court case discussing the nature of the "right to privacy" and the legal definition of a "search." The Court’s ruling adjusted previous interpretations of the unreasonable search and seizure clause of the Fourth Amendment to count immaterial...
decision to establish whether Dr. Ortega had a reasonable expectation of privacy over the contents of his desk and office. First, did he have a subjective expectation that they would be left undisturbed by others, and second, would that expectation be one that society would consider reasonable and respect?
On the first prong, he had occupied the office for all 17 years of his employment. He kept within his desk not only personal papers and effects but confidential patient records. He had believed he had the only key, and was not aware of any other time during his employment at Napa in which his office had been entered without his permission. In Mancusi v. DeForte
Mancusi v. DeForte
Mancusi v. DeForte, , is a 1968 decision of the United States Supreme Court on privacy and the Fourth Amendment. It originated in the lower courts as United States ex rel. Frank DeForte, appellant v. Vincent R. Mancusi, Warden of Attica Prison, Attica, New York, appellee, a petition for a writ of...
, the Supreme Court had held that an employee can have a reasonable expectation of privacy over his or her desk at work from searches by law enforcement.The Court, in that case, overturned the conviction of a Long Island
Long Island
Long Island is an island located in the southeast part of the U.S. state of New York, just east of Manhattan. Stretching northeast into the Atlantic Ocean, Long Island contains four counties, two of which are boroughs of New York City , and two of which are mainly suburban...
labor union official on corruption and racketeering-related charges since the principal evidence had been taken from his desk by investigators who only had a subpoena
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
.
Two cases from the Third Circuit
United States Court of Appeals for the Third Circuit
The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the district courts for the following districts:* District of Delaware* District of New Jersey...
, with direct similarities to Ortega's, argued for the reasonableness of his privacy expectation. In one, the presence of presence of sensitive and confidential documents within a deskIn that case, a member of the Fair Lawn, New Jersey
Fair Lawn, New Jersey
Fair Lawn is a borough in Bergen County, New Jersey, United States and a suburban municipality in the New York City Metropolitan Area. As of the 2010 United States Census, the borough's population was 32,457. Fair Lawn was incorporated as a borough by an Act of the New Jersey Legislature on March...
, school board
Board of education
A board of education or a school board or school committee is the title of the board of directors or board of trustees of a school, local school district or higher administrative level....
had opened a guidance counselor's desk drawer and found the original draft of a pseudonymously published cartoon that ridiculed the board. was held to strengthen the privacy expectation; and in the other, the personal lock that a police officer had used for his department locker led to the suppression of a sawed-off shotgun seized by federal agents.
In the latter case, the department had also lacked a formal policy on whether the lockers could be searched, as had been the case at Napa. This Wright used to distinguish it and Ortega's case from other precedents where warrantless searches of public employees' lockers, jackets or backpacks had been upheld due to broadly disseminated and actively implemented policies that such searches could occur at any time. "Here, Napa had never instituted surveillance or searches and had no general inspection policy that might have defeated Ortega's expectation of privacy in his office," she concluded.
The appeals court ordered the district court to enter judgement in Ortega's favor on that issue and hold proceedings to fix damages. The pendent state-law claims had not been filed in a timely fashion, and the panel affirmed that part of the summary judgement.
Before the Court
The state of California's certiorariCertiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
petition was granted by the Supreme Court in 1985. Since he was representing himself
Pro se legal representation in the United States
Pro se legal representation means advocating on one's own behalf before a court, rather than being represented by a lawyer. This may occur in any court proceeding, whether one is the defendant or plaintiff in civil cases, and when one is a defendant in criminal cases. Pro se is a Latin phrase...
, Ortega filed his own brief
Brief (law)
A brief is a written legal document used in various legal adversarial systems that is presented to a court arguing why the party to the case should prevail....
. The Court invited Joel Klein
Joel Klein
Joel Irwin Klein was Chancellor of the New York City Department of Education, the largest public school system in the United States, serving more than 1.1 million students in more than 1,600 schools...
, the future New York City Schools Chancellor then in private practice, to argue Ortega's case, and he also filed an amicus curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
brief on Ortega's behalf.
The appellants' brief was filed by California Attorney General John Van de Kamp
John Van de Kamp
John Kalar Van de Kamp is an American politician. He served as Los Angeles County District Attorney from 1975 until 1981, and then as 28th Attorney General of California from 1983 until 1991....
and several of his assistants. Solicitor General Charles Fried
Charles Fried
Charles Fried is a prominent American jurist and lawyer. He served as United States Solicitor General from 1985 to 1989. He is currently a professor at Harvard Law School.-Early life and education:...
filed an amicus brief on behalf of the federal government urging reversal. The American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
and American Federation of State, County and Municipal Employees
American Federation of State, County and Municipal Employees
The American Federation of State, County and Municipal Employees is the second- or third-largest labor union in the United States and one of the fastest-growing, representing over 1.4 million employees, primarily in local and state government and in the health care industry. AFSCME is part of the...
urged affirmance in their amici. Oral argument
Oral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute...
s were held in October 1986.
Petitioners' oral argument
Jeffrey T. Miller, one of Van de Kamp's deputies, argued for the petitioners. He did not deny that government employees had Fourth Amendment rights, but "the activity that took place in this case did not constitute a search within Fourth Amendment jurisprudence". He insisted that the Court should follow the district court's lead in finding that Dr. Ortega's office had been inventoried, not searched, until he was reminded that the district court had merely found the action to be a securing of the property in case Ortega returned to remove something else, and had not even used the word "inventory." It would not have been reasonable for the doctor to have imagined that no one else would or could have entered the office without his consent or knowledge in the 17 years he was employed at Napa.Likewise, a desk was a "common repository", likely to be used by many people besides the one regularly seated behind it. "It is foreseeable that a number of different people working for government, from clerical staff to supervisors to colleagues, will move into an office, that is, enter an office, open a desk for a variety of reasons." When Justice Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
challenged him as to whether employees in the private sector would have a reasonable expectation of privacy over their desks, he agreed that they might but reminded her the Fourth Amendment does not apply to private employers.
He asked that the Court follow the logic of its 1985 ruling in New Jersey v. T. L. O.
New Jersey v. T. L. O.
New Jersey v. T.L.O., 469 U.S. 325 is a decision by the Supreme Court of the United States addressing the constitutionality of a search of a public high school student for contraband after she was caught smoking. A subsequent search of her purse revealed drug paraphernalia, marijuana, and...
in which it had held that only a reasonable belief that evidence of misconduct would be found was needed to justify a search of a student or possessions on school property during school hours. Chief Justice William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
asked Miller if he was arguing the Fourth Amendment did not apply at all in schools. "it seems to me there is certainly language in T.L.O. against you on that point." That case, Miller responded, "had at least made the initial inquiry into whether the Fourth Amendment was applicable."
The other justices were not convinced that Ortega's office had been entered for inventory purposes. They pointed to facts in the record they saw as being at odds with the state's interpretation. Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
asked if it were possible that the Court could rule that it was an inventory but the actions taken had exceeded the scope of those necessary to accomplish that. Miller said that would be moot as there was no expectation of privacy over the desk and office. He further explained that Ortega's key may have givn him a subjective expectation of privacy, but not necessarily a reasonable one. Miller admitted to Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
that he did not know why the inventory could not have been done in Ortega's presence to better facilitate the sorting of property.
He noted that most public agencies have an Inspector General
Inspector General
An Inspector General is an investigative official in a civil or military organization. The plural of the term is Inspectors General.-Bangladesh:...
or something similar, who "every now and then drops in on offices to see if employees have their own things in their office". When Justice Byron White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
asked if his position implied that a public agency could search its employees' desks or offices at any time of the day or night, he said yes. "It may give rise to work grievances, to state and common law tort remedies ... but it would not violate the Fourth Amendment in our view."
Respondent's oral argument
"Our argument rests on three propositions", Klein told the justices. "[F]irst, that it is both customary and reasonable for a public employee to keep personal papers and effects in his work office and to expect that the privacy of such materials will be protected against arbitrary searches or seizures by his employer; second, that the application of the Fourth Amendment to office searches is not incompatible with the government's responsibilities as an employer."Before he could get to the third, he was challenged by Scalia, who posited a situation where he might be working late and need to retrieve a document or file. He would find it on the desk of one of his clerks, who might have gone home for the day. "Now," he asked, "have I conducted a Fourth Amendment search and seizure, and I am only immune from ... suit because it was reasonable?
Klein conceded to another justice's followup question that it was understood that, in all offices, "our expectation is, in the evenings, when people go home, others may on the basis of need enter ... The Fourth Amendement does not apply in most situations to a routine office entry, that is, if an employer or co-worker walks into your office looking for a paper clip." However, he said, that understanding did not defeat an expectation of privacy, likening it to a hotel room, where the Court had previously held there was an expectation of privacy even though hotel staff routinely enter for janitorial purposes. Scalia asked if it would be a Fourth Amendment violation if cleaning crews were to have looked through Ortega's desk and papers. "I don't think they would be exercising government authority in that situation", Klein answered, since the cleaning crews were presumably under instructions not to do so.
O'Connor asked if it would be reasonable for a supervisor to enter an office and look through a desk to "discover whatever might be appropriate for work-related wrongdoing of some kind?" As an example, she suggested, a supervisor might want to assess an employee's progress toward a deadline. Klein did not think so, since normally such matters are handled by asking the employee to produce whatever work has been completed.
To highlight his argument that the intrusion into Ortega's office had been a search rather than a property inventory, he used the example of the book of poetry, which was obviously personal property. "[I]f you pick up a book of poetry you don't have to open that book to find out who sent it to him." It was suggested that perhaps he read poetry to his patients, but Klein responded that the state had not suggested that and that, even if he did the book was still undeniably personal property.
He, too, compared the case with T.L.O., telling Justice White that he believed a search warrant
Search warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....
might have been necessary to enter Ortega's office in this situation. "[L]et me just say that I think that they were looking for information to use against him to take his job away from him. He had been singled out", Klein said. "[E]ven if you take the T.L.O. standard, it is inconceivable that we could have a lower standard at the work place than we have at the school given the interests of employees and their adult age ... [T]here has to be reasonable suspicion when you go in to do the search that you will uncover evidence." If the state or the hospital had really wanted the right to enter employees' offices, it could have followed the example of the Mint
United States Mint
The United States Mint primarily produces circulating coinage for the United States to conduct its trade and commerce. The Mint was created by Congress with the Coinage Act of 1792, and placed within the Department of State...
and the Customs Service
United States Customs Service
Until March 2003, the United States Customs Service was an agency of the U.S. federal government that collected import tariffs and performed other selected border security duties.Before it was rolled into form part of the U.S...
and promulgated a regulation stating that employees' property could be subject to search.
Decision
Five months later, in March 1987, the Court handed down its decision. All nine justices agreed that public employees had Fourth Amendment protections during administrative searches in the workplace, and that routine work-related intrusions as discussed at oral argument did not constitute a violation. They differed as to whether Ortega's had been breached by the search. The five-justice majority believed it could not determine the purpose of the intrusion into Ortega's office and so remanded the case to the district court to do so.Justice Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
wrote for a four-justice plurality
Plurality opinion
A plurality opinion is the opinion from a group of justices, often in an appellate court, in which no single opinion received the support of a majority of the court. The plurality opinion did not receive the support of more than half the justices, but received more support than any other...
that the same reasonable suspicion
Reasonable suspicion
Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch' ";...
standard it developed for T.L.O. was applicable to administrative searches of public employees' workspace or possessions, since the "operational realities" of a public work environment may substantially reduce or eliminate a standard expectation of privacy. In a separate concurring opinion
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
, Justice Scalia rejected that as too vague to be useful to lower courts, and proposed instead that any search that would be reasonable for a private employer would be permissible for a public one.
Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
wrote for the four dissenting
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
justices. He believed the majority had put too much weight on the different interpretations of the intrusion by the district and appellate courts, since he felt it was clearly an investigatory search for evidence against Dr. Ortega. Also, he charged, the majority had taken his concurrence in T.L.O. out of context to support its reasonableness standard. He did not feel, as they did, that outside of special cases such as the school system that it would have been detrimental to the operations of a public agency such as the hospital to have some sort of independent review and establish probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
for an administrative search related to possible violations of policy.
Plurality opinion
After recounting the history of the case and the sweep of the Court's prior Fourth Amendment jurisprudence, O'Connor, joined by Chief Justice RehnquistWilliam Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
, Byron White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
, and Lewis Powell
Lewis Franklin Powell, Jr.
Lewis Franklin Powell, Jr. was an Associate Justice of the Supreme Court of the United States. He developed a reputation as a judicial moderate, and was known as a master of compromise and consensus-building. He was also widely well regarded by contemporaries due to his personal good manners and...
, defined the boundaries of the workplace context as "those areas and items that are related to work and are generally within the employer's control." Some items that passed through the workplace were personal, and as the Court had ruled in Mancusi, a reasonable expectation of privacy may exist there. "[W]e reject the contention made by the Solicitor General and petitioners that public employees can never have a reasonable expectation of privacy in their place of work," she wrote. "Individuals do not lose Fourth Amendment rights merely because they work for the government, instead of a private employer."
She immediately qualified that holding.
Moving from the general principle to the case at hand, O'Connor agreed that Ortega had that same reasonable expectation of privacy, but that since the record did not reflect the extent of whatever legitimate work-related reasons the hospital administrators might have had to enter the office, the Ninth Circuit should have remanded the case to the district court to determine that, as the majority was doing. Following T.L.O., she said the inquiry should not stop with determining the Fourth Amendment applied, but whether the contxt made the search reasonable. "We must balance the invasion of the employees' legitimate expectations of privacy against the government's need for supervision, control, and the efficient operation of the workplace."
There was, O'Connor admitted, "surprisingly little case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
" on the subject. That which existed did seem to support the standard she proposed for work-related searches, most notably a 1973 case from the Seventh Circuit
United States Court of Appeals for the Seventh Circuit
The United States Court of Appeals for the Seventh Circuit is a federal court with appellate jurisdiction over the courts in the following districts:* Central District of Illinois* Northern District of Illinois...
in which the surreptitious recording of an Internal Revenue Service
Internal Revenue Service
The Internal Revenue Service is the revenue service of the United States federal government. The agency is a bureau of the Department of the Treasury, and is under the immediate direction of the Commissioner of Internal Revenue...
's agent's conversations at his desk by the agency's internal investigators was held to be reasonable and work-related, and a 1951 case from the District of Columbia
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
which held that although a search of the appellee's desk by local police with her government supervisor's permission was unconstitutional, a work-related search by her supervistor would not have been. She distinguished these from other cases that proposed other standards for public workplace searches by noting that those cases were either not work-related or involved criminal misconduct.
"In our view," O'Connor continued,
She quoted from Connick v. Myers
Connick v. Myers
Connick v. Myers, , is a United States Supreme Court decision concerning the First Amendment rights of public employees who speak on matters of possible public concern within the workplace context. It was first brought by Sheila Myers, an Orleans Parish, Louisiana, assistant district attorney...
, an earlier case which had considered the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
rights of an assistant prosecutor fired for allegedly disruptive behavior: "[G]overnment offices could not function if every employment decision became a constitutional matter."
O'Connor announced that the Court would consider only the constitutionality of work-related and investigatory searches "and leave for another day inquiry into other circumstances." She found "the efficient and proper operation of the workplace" to similarly justify investigatory searches, since supervisors had different needs from law enforcement
Law enforcement agency
In North American English, a law enforcement agency is a government agency responsible for the enforcement of the laws.Outside North America, such organizations are called police services. In North America, some of these services are called police while others have other names In North American...
. "The delay in correcting the employee misconduct caused by the need for probable cause, rather than reasonable suspicion, will be translated into tangible and often irreparable damage to the agency's work, and ultimately to the public interest." She again cited T.L.O. to justify this standard. "Government offices are provided to employees for the sole purpose of facilitating the work of an agency. The employee may avoid exposing personal belongings at work by simply leaving them at home."
Lastly O'Connor found the district court's finding on summary judgement that the intrusion was for the purposes of securing state property to be in error since there was a genuine dispute of fact. It followed then that the appellate court could not have made a definitive finding of fact either. The case was remanded to the district court with instructions to both determine what justified the search and seizure of Ortega's property and whether that search was reasonable in both its inception and scope.
Scalia concurrence
Scalia agreed that the case should be remanded, but felt it was not helpful to call for a case-by-case assessment, since it was difficult to make practical use of. He found fault with O'Connor's comment, justifying her "operating realities" test, that some public workplaces might be "so open" as to offer no reasonable expectation of privacy. "No clue is provided as to how open 'so open' must be; much less is it suggested how police officers are to gather the facts necessary for this refined inquiry ... [I]t is so devoid of content that it produces, rather than eliminates, uncertainty in this field."The plurality's standard could not be right if it led to a conclusion that the Fourth Amendment did not apply to a work-related entry into Ortega's office.
Whether it was a supervisor or police officer entering the office, he said, only made a difference as to whether the search was reasonable, not whether the Fourth Amendment applies. When a firefighter enters a house where an alarm has gone off, he noted, "we do not ask whether the occupant has a reasonable expectation of privacy (and hence Fourth Amendment protection) vis-a-vis firemen, but rather whether—given the fact that the Fourth Amendment covers private dwellings—intrusion for the purpose of extinguishing a fire is reasonable", citing the Court's Michigan v. Tyler ruling.That case had dealt with Fourth Amendment rights during the subsequent investigations of the fire, not the firefighters' initial entry.
He argued that the offices and desks of public employees were covered by the Fourth Amendment as a general matter, choosing his words to avoid the Katz rule that places exposed to public view are not covered by the Fourth Amendment since some government offices, as O'Connor had noted, were subject to unrestricted public access. "Government searches to retrieve work-related materials or to investigate violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private employer context—do not violate the Fourth Amendment." Since the evidence in the case did not support a summary judgement, he joined his colleagues in ordering the case remanded.
Dissent
At the outset of his opinion, signed by justices William J. Brennan, Jr.William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
, Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
and John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
, Blackmun said "The facts of this case are simple and straightforward. Dr. Ortega had an expectation of privacy in his office, desk, and file cabinets, which were the target of a search by petitioners that can be characterized only as investigatory in nature." He disagreed with the plurality that there was anything special about a public workplace that justified a lower standard for such searches, and called the intrusion an unconstitutional search. Not only had it found what were to him clear facts in dispute,In his footnote 3, Blackmun accused the plurality of letting its opinion on this issue be shaped by its members' antipathy to public workers. it had nevertheless chosen to derive a standard from a case it had remanded to resolve that dispute. "As a result, the standard that emerges makes reasonable almost any workplace search by a public employer."
As to the facts, Blackmun contended the plurality had been confused, partially relying on Ortega's removal of the computer as a reason to consider the intrusion reasonable when, he noted, the record itself had testimony from Friday that that this had not triggered the search. Dr. O'Connor had further admitted in his deposition
Deposition (law)
In the law of the United States, a deposition is the out-of-court oral testimony of a witness that is reduced to writing for later use in court or for discovery purposes. It is commonly used in litigation in the United States and Canada and is almost always conducted outside of court by the...
that there was an investigatory interest in the contents of Ortega's office. The searchers had also consulted with a lawyer and waited until the evening. "The search in question stemmed neither from a Hospital policy nor from a practice of routine entrances into Dr. Ortega's office", he wrote. "It was plainly exceptional and investigatory in nature. Accordingly, there is no significant factual dispute in this case."
Blackmun began his disagreement with the plurality's embrace of the reasonable suspicion
Reasonable suspicion
Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch' ";...
standard by agreeing with it that government employees retained their Fourth Amendment rights at work. He accepted as well that routine work-related intrusions might diminish their expectation of privacy. He did not accept that such intrusions would eliminate it.
The Court had always recognized Fourth Amendment rights in offices, he said, despite the understanding that it would be visited by others. The plurality did recognize, he conceded, another point: that a search unreasonable in one context might be reasonable in another.In his footnote 2, Blackmun responded to Scalia's criticism by quoting from other opinions, most by his fellow dissenters, to the effect that a case-by-case analysis might be the only way to create effective Fourth Amendement jurisprudence But
Thus he thought it especially important that the context of the search be considered.
Blackmun reminded the plurality that his concurring opinion in T.L.O., from which Justice O'Connor had drawn support for her "special need" argument, was meant to address an error he believed that case's plurality had made. The balancing test he had proposed there was not needed here, since "[t]here was no special practical need that might have justified dispensing with the warrant and probable cause requirements." The time and effort required to get a warrant, he said, would not have detracted from the hospital's mission of providing quality patient care and educating new psychiatrists. An independent review by a magistrate
Magistrate
A magistrate is an officer of the state; in modern usage the term usually refers to a judge or prosecutor. This was not always the case; in ancient Rome, a magistratus was one of the highest government officers and possessed both judicial and executive powers. Today, in common law systems, a...
might, he added, have helped make the search not only constitutional but more efficient, since they would have been forced to list and justify every aspect of the office and desk they wished to look through.
And even if there were a special need, the balancing test would still not be necessary.
Despite claiming to have drawn well-defined standards from the facts of the case, the two categories of searches it had approved as not requiring warrants, they were, Blackmun felt, so broadly drawn that "it is difficult to imagine a search that would not fit into one or the other ..."
Reaction
The case was closely watched by the parties to National Treasury Employees Union v. Von RaabNational Treasury Employees Union v. Von Raab
National Treasury Employees Union v. Von Raab was a United States Supreme Court case involving the Fourth Amendment and its implication on drug testing programs. The majority of the court upheld the drug testing program in United States Customs Service....
, then on appeal to the Fifth Circuit
United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana...
and seen as likely to reach the Supreme Court (as it eventually did). It involved a challenge by employees of the United States Customs Service
United States Customs Service
Until March 2003, the United States Customs Service was an agency of the U.S. federal government that collected import tariffs and performed other selected border security duties.Before it was rolled into form part of the U.S...
to a proposal by the agency that employees in certain positions submit to mandatory drug testing. The employees' union had sued to block it, arguing it was a violation of their Fourth Amendment protections.
The union and the American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
, which had also filed an amicus brief urging affirmance in O'Connor, praised the court's holding that public employees had Fourth Amendment rights in the workplace. They said it made their arguments in Von Raab stronger. The Justice Department
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
maintained that it still believed the Customs Service's drug testing requirement would be held constitutional.
Disposition
Within two months of the Court's decision the Ninth Circuit formally remanded it to the district court. A new trial was held five years later, in 1992, again before Judge Vukasin. Dr. Ortega once again had to represent himself, and when the defense failed to receive his witness list the court sanctionedSanctions (law)
Sanctions are penalties or other means of enforcement used to provide incentives for obedience with the law, or with rules and regulations. Criminal sanctions can take the form of serious punishment, such as corporal or capital punishment, incarceration, or severe fines...
him by refusing to allow him to present them. As a result he was largely limited to cross-examining
Cross-examination
In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination and may be followed by a redirect .- Variations by Jurisdiction :In...
the opposing witnesses, and when the defense was done presenting its case the court granted its motion for a directed verdict
Directed verdict
In a jury trial, a directed verdict is an order from the presiding judge to the jury to return a particular verdict. Typically, the judge orders a directed verdict after finding that no reasonable jury could reach a decision to the contrary...
.
Ortega appealed to the Ninth Circuit again, retaining his lawyer to do so. He challenged not only the sanctioning but the trial court's refusal to let him Asher Rubin as a defendant. In late 1994 a three-judge panel heard the case; it announced its decision five months later.
Circuit judge Diarmuid O'Scannlain wrote for a unanimous panel that the sanctions, while within limits of judicial disrection, had so adversely affected Ortega's case that the verdict was tainted. Reduced to merely cross-examining opposing witnesses, he could not present his own case-in-chief. And, further, they were unjustified as the trial record included a letter from Ortega to Paul Hammerness, the assistant attorney general handling the case, referring to "the enclosed witness list", that had been stamped as received by the court in November 1992.
"The court appears to have overlooked this evidence of Dr. Ortega's compliance", O'Scannlain wrote. "Dr. Ortega's compliance is not negated by the fact that opposing counsel failed to receive the list." Therefore, the sanctions against his witnesses had clearly been erroneous. The panel then affirmed the district court on its denial of the additional defendant, as the district court that had first heard the case dismissed that defendant on prosecutorial immunity
Prosecutorial immunity
Immunity from prosecution occurs when a prosecutor grants immunity, usually to a witness in exchange for testimony or production of other evidence. It is immunity because the prosecutor essentially agrees to never prosecute the crime that the witness might have committed in exchange for said...
grounds. Had Ortega wished to challenge that holding, the panel said, he had to have done so on his original appeal to the Ninth Circuit.
On remand, O'Connor and Friday, the only defendants left, changed their strategy and asserted qualified immunity
Qualified immunity
Qualified immunity is a doctrine in U.S. federal law that arises in cases brought against state officials under 42 U.S.C Section 1983 and against federal officials under Bivens v. Six Unknown Named Agents, 403 U.S. 388 . Qualified immunity shields government officials from liability for the...
,Qualified immunity
Qualified immunity
Qualified immunity is a doctrine in U.S. federal law that arises in cases brought against state officials under 42 U.S.C Section 1983 and against federal officials under Bivens v. Six Unknown Named Agents, 403 U.S. 388 . Qualified immunity shields government officials from liability for the...
bars suits against those acting under color of law
Color (law)
In U.S. law, the term color of denotes the “mere semblance of legal right”, the “pretense or appearance of” right; hence, an action done under color of law colors the law to the circumstance, yet said apparently legal action contravenes the law....
for actions that might have been illegal, or were later prohibited, but for which there was a lack of settled law at the time. for the first time, dropping their claim that the need to secure or inventory state property justified their intrusion. Instead, they said, the claims of misconduct, particularly the alleged sexual harassment
Sexual harassment
Sexual harassment, is intimidation, bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favors. In some contexts or circumstances, sexual harassment is illegal. It includes a range of behavior from seemingly mild transgressions and...
, made it necessary. During pretrial motions, Judge Marilyn Hall Patel
Marilyn Hall Patel
Marilyn Hall Patel is an active judge presiding in the U.S. District Court for the Northern District of California. She was Chief District Judge of that jurisdiction from 1997 until 2004, and heard several notable cases during that time....
, who took over the case since Vukasin had died, barred the use of qualified immunity and ruled that sexual harassment could not have justified the search. As a result both parties agreed not to introduce the book of poetry, photo and Valentine.
A jury found for Ortega on all his claims. It awarded him $376,000 in compensatory damages, and $35,000 and $25,000 respectively against O'Connor and Friday respectively. Afterward, the district court awarded almost $32,000 in attorney's fees. O'Connor and Friday appealed.
A three-judge panel, including two of the judges who had been on the 1985 panel, found Patel's rulings on qualified immunity and the sexual harassment claims worthy of consideration. Stephen Reinhardt
Stephen Reinhardt
Stephen Roy Reinhardt is a circuit judge on the United States Court of Appeals for the Ninth Circuit, with chambers in Los Angeles, California. He was appointed in 1980 by President Jimmy Carter.-Education and practice:...
, one of those original judges, noted that Judge Vukasin had rejected the qualified immunuity defense at the first trial and that the jury instructions
Jury instructions
Jury instructions are the set of legal rules that jurors should follow when the jury is deciding a civil or criminal case. Jury instructions are given to the jury by the jury instructor, who usually reads them aloud to the jury...
Patel and both sides had approved made such a defense possible even if the exact words "qualified immunity" were not used. Nor were the defendants correct in arguing that there was no settled law before the Supreme Court's ruling. "[I]t was clearly established in 1981 that, in the absence of an accepted practice or regulation to the contrary, government employees such as Dr. Ortega had a reasonable expectation of privacy in their private offices, desks, and file cabinets, thereby triggering the protections of the Fourth Amendment with regard to searches and seizures", Reinhardt wrote. He quoted explicit language to that effect from the Supreme Court's 1966 holding in Hoffa v. United States and noted the Supreme Court plurality's citation of existing lower-court holdings saying the same thing. Even if it had not been, it was not "reasonable under the circumstances", as Terry v. Ohio
Terry v. Ohio
Terry v. Ohio, 392 U.S. 1 , was a decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him without probable cause to arrest, if the police...
required.
O'Connor and Friday had argued that, by denying them the opportunity to raise the sexual harassment claims as a justification for the search, Patel had improperly granted what amounted to sua sponte
Sua sponte
In law, sua sponte describes an act of authority taken without formal prompting from another party. The term is usually applied to actions by a judge taken without a prior motion or request from the parties...
partial summary judgement against them. Reinhardt countered that they had had adequate time to develop their defense and so the judge was "procedurally free" to do that. He turned to whether such a ruling was justified and not an abuse of discretion. Even if he resolved an issue of disputed fact in their favor and assumed that O'Connor and Friday knew of the sexual harassment allegations before they went into Ortega's office, the allegations themselves were vague, and one of them was ten years old. Thus, he continued, they did not create a reasonable suspicion that he was harassing residents, and even if they did they could not have reasonably established a likelihood that evidence supporting them would be found there. "The search was, at best, a general and unbounded pursuit of anything that might tend to indicate any sort of malfeasance—a search that is almost by definition, unreasonable." It had also been properly excluded since its prejudicial value outweighed its probative value.
"It is now seventeen years since the search of Dr. Ortega's office occurred and his most personal letters and possessions were examined and seized. It is time to bring this matter to a conclusion", wrote Reinhardt. He dismissed the remaining grounds for appeal as meritless, and the panel unanimously upheld the district court. The appellate decision was not further appealed.
After the state paid his claim, amounting to over $700,000 with interest
Interest
Interest is a fee paid by a borrower of assets to the owner as a form of compensation for the use of the assets. It is most commonly the price paid for the use of borrowed money, or money earned by deposited funds....
, Dr. Ortega was sued by one of his former attorneys for unpaid bills. The two settled the claim in arbitration, but after Ortega refused to comply, the attorney sued him and won an adjustment to the arbitration award correcting some errors made in calculating the interest rate. A state appellate court upheld the trial court verdict in 2001, saying Ortega's "often rambling and incoherent narratives" in briefs he wrote himself left them with little in the way of substantive legal argument. Ortega died in 2009.
Subsequent jurisprudence
The first case after O'Connor to involve the Fourth Amendment rights of government employees at work was, as expected, National Treasury Employees Union v. Von RaabNational Treasury Employees Union v. Von Raab
National Treasury Employees Union v. Von Raab was a United States Supreme Court case involving the Fourth Amendment and its implication on drug testing programs. The majority of the court upheld the drug testing program in United States Customs Service....
. A 5-4 majority held that the urine testing the Customs Service
United States Customs Service
Until March 2003, the United States Customs Service was an agency of the U.S. federal government that collected import tariffs and performed other selected border security duties.Before it was rolled into form part of the U.S...
proposed for internal promotion to positions involving drug interdiction, carrying firearms or handling classified material was reasonable since it was "not designed to serve the ordinary needs of law enforcement." Scalia, in a dissent joined by Stevens, called the program "a kind of immolation of privacy and human dignity in symbolic opposition to drug use". The Customs Service, he said, had not introduced "real evidence of a real problem that will be solved by urine testing."
Later, when turning down a 1997 challenge by employees of Puerto Rico Telephone to a proposed video surveillance plan, Judge Bruce M. Selya of the First Circuit
United States Court of Appeals for the First Circuit
The United States Court of Appeals for the First Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Maine* District of Massachusetts...
called O'Connor "[t]he watershed case in this enclave of Fourth Amendment jurisprudence". His opinion surveyed a number of other district and circuit cases considering the "operating realities" of public workplaces to establish whether a legitimate expectation of privacy existed.
A key issue was whether the workplace or portion in question was reserved for the employee's personal use. A judge in the District of Kansas
United States District Court for the District of Kansas
The United States District Court for the District of Kansas is the federal district court whose jurisdiction is the state of Kansas. The Court operates out of the Robert J. Dole United States Courthouse in Kansas City, the Frank Carlson Federal Building in Topeka, and the United States Courthouse...
had granted summary judgement to Johnson County Community College
Johnson County Community College
Johnson County Community College Is referred to locally by the synechdoche "Ju-co", and is located in Overland Park, Kansas at College Boulevard and Quivira Road.-History:...
against its security guards who challenged its video surveillance of their locker room by noting that the locker area under view was not exclusive to any of them. This distinguished it from the Drug Enforcement Administration
Drug Enforcement Administration
The Drug Enforcement Administration is a federal law enforcement agency under the United States Department of Justice, tasked with combating drug smuggling and use within the United States...
's surreptitious videotaping of two agents convicted of illegal wiretapping, where the Ninth Circuit suppressed the videos because it found the agents had exclusive use of their offices.
In a New York case that echoed Scalia's questions to Klein at oral argument, the Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
found it reasonable for a judge to have court officers seize the contents of his just-fired law clerk's desk since the relationship between the two required free and complete access to each other's papers. As in cases preceding O'Connor, a workplace policy on searches has been held to defeat or diminish expectations of privacy. The Ninth Circuit upheld a civilian engineer's discharge from the Naval Reserve was upheld on the grounds that regular workplace searches removed any expectation of privacy over documents revealing his bisexuality
Bisexuality
Bisexuality is sexual behavior or an orientation involving physical or romantic attraction to both males and females, especially with regard to men and women. It is one of the three main classifications of sexual orientation, along with a heterosexual and a homosexual orientation, all a part of the...
. An unenforced or absent policy has been held to create a legitimate expectation.
Ontario v. Quon
As Ortega's dispute with his lawyer was coming to an end, elsewhere in California the events were unfolding that would lead to the next case where the Court would consider the Fourth Amendment rights of public employees during administrative investigations. In 2000 the city of OntarioOntario, California
Ontario is a city located in San Bernardino County, California, United States, 35 miles east of downtown Los Angeles. Located in the western part of the Inland Empire region, it lies just east of the Los Angeles county line and is part of the Greater Los Angeles Area...
purchased 20 alphanumeric pagers for its police department SWAT
SWAT
A SWAT team is an elite tactical unit in various national law enforcement departments. They are trained to perform high-risk operations that fall outside of the abilities of regular officers...
team to carry on and off-duty. A department policy, never put in writing, said that "light personal use" was permitted but that the pager messages could be audited at any time.
Several officers routinely exceeded the monthly character
Character (computing)
In computer and machine-based telecommunications terminology, a character is a unit of information that roughly corresponds to a grapheme, grapheme-like unit, or symbol, such as in an alphabet or syllabary in the written form of a natural language....
limit. The lieutenant in charge of the pagers at first allowed them to reimburse the city for the overage fees in exchange for not auditing the messages. Later, when he was "tired of being a bill collector", he and his superiors decided to audit the text messages to see if the character limit was too low.
Transcripts of the pager messages, redacted to include those sent only during work hours, showed that many of them were not work-related, and some were sexually explicit
Sexting
Sexting is the act of sending sexually explicit messages or photographs, primarily between mobile phones. The term was first popularized in early 21st century, and is a portmanteau of sex and texting, where the latter is meant in the wide sense of sending a text possibly with...
. Two officers were disciplined. Afterwards, they sued the superior officers, the department, the city and the pager provider for violation of the Stored Communications Act
Stored Communications Act
The Stored Communications Act is a law that was enacted by the United States Congress in 1986. It is not a stand-alone law but forms part of the Electronic Communications Privacy Act; it is codified as 18 U.S.C. §§ 2701 to 2712...
and their Fourth Amendment rights. The district court held a jury trial, which determined the audit was work-related, and it ruled for the defendants.
On appeal the Ninth Circuit reversed, calling the audit an unreasonable search. After being denied their petition for an en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
rehearing, the defendants successfully petitioned the Supreme Court for certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
. The Court would only consider the Fourth Amendment claim, so the wireless provider was dropped as a petitioner there.
The case received much attention since it also was the first time
First impression (law)
First impression is a legal case in which there is no binding authority on the matter presented. Such a case can set forth a completely original issue of law for decision by the courts. A first impression case may be a first impression in only a particular jurisdiction...
the Court had considered Fourth Amendment rights in the rapidly expanding area of electronic telecommunications. Only Scalia and Stevens remained from the O'Connor court. As a result, it was also seen as a possible chance to resolve the conflict between the plurality's "operating realities" standard and Scalia's.
In June 2010, the Court unanimously upheld the search. Instead of choosing one of the O'Connor standards, it applied them both. Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
wrote for a seven-justice majority
Majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision....
that since the audit had had a legitimate work-related purpose and its scope was limited to the pager messages sent at work, it was reasonable enough for the plurality in that case, and it would have been reasonable for a private-sector employer as Scalia had proposed.
Stevens and Scalia both wrote separate concurring opinions. The former felt that, under the case-by-case approach Blackmun had advocated in his O'Connor dissent, Quon in this case knew or should have known all his communications could have come under public scrutiny. Scalia's opinion of the "operational realities" test remained unchanged. He called it "standardless and unsupported" and said the Quon majority "underscores the unworkability of that standard".
Analysis and commentary
When considering what approach the Court would take in Quon, George Washington University law professor Orin KerrOrin Kerr
Orin S. Kerr is a professor of law at the George Washington University Law School, legal representation for the MySpace "cyber bullying" pioneer Lori Drew and a leading scholar in the subjects of computer crime law and internet surveillance. In the fall of 2006, he visited as an associate professor...
, a Fourth Amendment scholar, noted that courts have generally used the plurality standard from O'Connor. "Exactly how you get there is sort of tricky, though", he commented. "So courts have mostly just figured that four Justices is more than one and that they should follow the analysis in the concurring opinion."
O'Connor biographer Ann Cary McFeatters writes that her and Scalia's separate opinions in this case were the first of many clashes between the two justices in their joint tenure on the Court. "It would not be the last time Scalia went after her with verbal venom. It would not be the last time his doctrinaire certitude conflicted with her case-by-case approach."